State Of Washington, V Lance Williams Evans

• Court: Court of Appeals of Washington
• Decided: January 28, 2014
• Docket: 43736-8
• Status: Unpublished

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 43736 -8 -II

Respondent,

V.

LANCE WILLIAM EVANS, UNPUBLISHED OPINION

Abbellant.

JOHANSON, J. — Following a stipulated facts bench trial, Lance William Evans appeals

his second degree unlawful firearm possession conviction. Evans claims that ( 1) the police

unlawfully arrested him without probable cause and ( 2) his trial counsel provided ineffective assistance. We affirm because Evans failed to preserve the probable cause challenge for appeal

and his trial counsel performed reasonably.

FACTS

Grants

On March 14, 2012, at 5: 58 PM, Lakewood Police Officers Jeremy Prater and

responded to unit 17 in the Avalon Place Apartments after the neighbor living in unit 18 called

911. The neighbor had reported that the woman from unit 17, later identified as Karen Rojo,

1 The record does not provide Officer Grant' s first name. No. 43736 -8 -II

came to his apartment and asked him to call 911 because a man was in Rojo' s apartment waving

a gun at her daughter.

Hearing this information, Officer Prater believed he was responding to a " high- risk"

incident. When Officers Prater and Grant arrived at the complex two minutes later, at 6: 00 PM,

2 to unit 17 and observed a white male through the open front door, later they proceeded

identified as Evans, sitting on a chair just inside the apartment. The officers took positions of

cover outside the apartment and directed Evans to walk out and lay face down on the ground.

Evans complied. A third officer then handcuffed Evans while Officers Prater and Grant cleared

the apartment, finding no other occupants —Rojo' s daughter was not in the apartment.

After the officers secured the area, Officer Prater contacted the neighbor who called 911,

and he located Rojo. Rojo informed Officer Prater that her daughter' s friend " Lance" came to

her apartment carrying a bag she described as a " man purse," and that Lance was upset because

her daughter owed him money. Clerk' s Papers ( CP) at 68. Rojo stated that Evans waved a small

black gun around and said, " No one is leaving until I get my money." CP at 68.

At 6: 09 PM, Officer Prater returned to where Evans was detained, confirmed with Evans

that his name was Lance, and then advised Evans of his Miranda3 rights. Evans indicated that he

understood his rights and agreed to speak with Officer Prater. When Officer Ryan Hamilton

arrived, he secured the " man purse" for safekeeping because the residents of unit 17 denied

ownership and wanted it removed. Evans eventually admitted owning the " man purse" and

2 The 911 report did not identify any other details about the man, other than his being a male. 3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

2 No. 43736 -8 -II

being a convicted felon. Officer. Hamilton advised Evans of his Ferrier4 warnings, and Evans

consented to him searching the " man purse." Officer Hamilton found three knives and a small

black handgun. The officers then placed Evans in a patrol car and transported him to jail.5

The State charged Evans with second degree unlawful firearm possession and

unlawfully carrying a weapon capable of producing bodily harm.7 Evans moved to suppress his statements, and he moved to suppress the gun due to an improper warrantless search; but he did

not challenge the legality of his arrest. After a CrR 3. 5 and 3. 6 hearing, the trial court found

Evans' s statements and gun admissible at trial.

After the trial court denied Evans' s suppression motions, Evans stipulated that the

evidence police obtained at the apartment would be admissible at trial and that the State had

sufficient evidence to convict him of second degree unlawful firearm possession; in exchange for

the stipulation, the State dismissed the unlawful carrying charge. Evans specifically reserved the

right to appeal the evidentiary suppression rulings. The trial court accepted Evans' s stipulation

and found him guilty of second degree unlawful firearm possession. Evans appeals.

ANALYSIS

I. PROBABLE CAUSE

Evans argues, for the first time on appeal, that officers unlawfully arrested him without

probable cause. We disagree because based on the record before us, the officers had probable

4 State v. Ferrier, 136 Wn.2d 103, 960 P. 2d 927 ( 1998).

5 The record does not indicate when the officers considered Evans formally arrested. 6 RCW 9. 41. 040( 2)( a)( i).

7 RCW 9. 41. 270( 1). 3 No. 43736 -8 -II

cause to arrest Evans. Therefore, Evans did not preserve this issue for appeal because he cannot

show actual prejudice, and he does not satisfy RAP 2. 5( a).

A. STANDARD OF REVIEW AND RULES OF LAW

before the trial. court. RAP Generally, we will not entertain a claim of error not raised

2. 5( a). An exception to that general rule is RAP 2. 5( a), which requires an appellant to

demonstrate a manifest error affecting a constitutional right. State v. Gordon, 172 Wn.2d 671,

676, 260 P. 3d 884 ( 2011). Stated another way, the appellant must identify a constitutional error

and show how the alleged error actually affected the appellant' s rights at trial. State v. O' Hara,

167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009).

To determine if an error is of constitutional magnitude, we look to whether, if the

defendant' s alleged error is true, the error actually violated the defendant' s constitutional rights.

O' Hara, 167 Wn.2d at 98 -99. An error is manifest if it is so obvious on the record that the error

warrants appellate review. O' Hara, 167 Wn.2d at 99 -100. But appellants must also demonstrate

actual prejudice," meaning the defendant must plausibly show the asserted error had practical

and identifiable consequences at trial. Gordon, 172 Wn.2d at 676. For an appellant to

demonstrate actual prejudice by trial counsel' s failure to move to suppress a warrantless arrest,

she or he must show that the trial court likely would have granted the motion if made. State V.

McFarland, . 27 Wn.2d 322, 333 -34, 899 P. 2d 1251 ( 1995). 1 To determine actual prejudice, that

the trial court likely would have granted the motion if made, we necessarily must preview the

merits of an appellant' s alleged error. See State v. Walsh, 143 Wn.2d 1, 8, 17 P. 3d 591 ( 2001).

Probable cause exists where the facts and circumstances within the arresting officer' s

knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a

person of reasonable caution to believe that an offense has been or is being committed. State v.

in No. 43736 -8 -II

Knighten, 109 Wn.2d 896, 899, 748 P. 2d 1118 ( 1988). We must consider the arresting officer' s

special experience and expertise in evaluating the reasonableness of the officer' s probable cause

determination. Knighten, 109 Wn.2d at 899.

A custodial arrest occurs if a reasonable detainee under the circumstances would consider

himself or herself under full custodial arrest; the subjective perception of the arresting officers is

irrelevant. State v. Glenn, 140 Wn. App. 627, 638, 166 P. 3d 1235 ( 2007). We look to several

factors to determine if a detainee could reasonably consider himself or herself under full

custodial arrest: whether the suspect is handcuffed, whether the suspect is placed in a patrol

vehicle for transport, and whether the suspect is told that he or she is under arrest. State v.

Radka, 120 Wn. App. 43, 49, 83 P. 3d 1038 ( 2004).

B. ANALYSIS

Here, even assuming without deciding that an arrest without probable cause is an error of

constitutional magnitude, Evans fails to demonstrate actual prejudice. Evans cannot show that

the trial court likely would have granted the motion to suppress the arrest had Evans made the

motion. Thus, he cannot satisfy RAP 2. 5( a).

In Glenn, Division One of this court held that officers have probable cause to arrest a

person when they receive a citizen' s report that someone is pointing a gun at a person, and the

facts and circumstances known to the arresting officers would cause a reasonable person to

believe that the identified person either pointed the gun or still possessed the gun. 140 Wn. App.

at 638 -39. In Glenn, a seven -year -old boy told his mother that a man driving by pointed a gun at

him, and the boy' s mother called police. 140 Wn. App. at 631. The boy' s mother saw a car

matching what her son described, copied the license plate, and reported it to police. Glenn, 140

Wn. App. at 631. When police arrived and interviewed the boy, a car drove by and the boy

E No. 43736 -8 -II

identified it as the same car from which the man pointed the gun. Glenn, 140 Wn. App. at 631.

The officers stopped the car, found that the plates matched the plates reported by the boy' s

mother, and arrested the driver. Glenn, 140 Wn. App. at 631. Division One held that probable

cause supported the driver' s arrest because the citizen' s report, combined with the matching

vehicle plates, would cause a reasonable person to believe that the driver pointed the weapon

from his car and still had the weapon on his person. Glenn, 140 Wn. App. at 638 -39.

Like Glenn, officers here responded to a high - risk, firearm- related citizen' s report that a

man was waving a gun at a female in unit 17 at the Avalon Place Apartments. Within two

minutes of receiving the call, officers observed a male in unit 17, verifying a portion of the

citizen' s report. After the officers secured the scene, they confirmed the 911 call and learned

that " Lance" had waved the gun in the apartment. Officer Prater then confirmed with Evans that

his name was Lance and advised him of his Miranda rights; after Officer Hamilton found

Evans' s gun in his " man purse," the officers placed him in a patrol car and transported him to

jail. Like Glenn, probable cause supported Evans' s arrest based on ( 1) the citizen' s initial report

that a man waved a gun at a woman in apartment 17, ( 2) the officers observed Evans inside

apartment 17, ( 3) the officers confirmed what happened with the citizen informant 911 caller and

Rojo identified the gunman as " Lance," and ( 4) the officers identified the man removed from

apartment 17 as " Lance." Those facts, taken together, as in Glenn, would lead a reasonable

person to believe that Evans waved a gun and still had a gun on his person. See 140 Wn. App. at

638 -39. Thus, the officers had probable cause for the arrest.

n No. 43736 -8 -II

Evans cannot demonstrate from the record that the officers unreasonably arrested him by 8 immediately ordering him to the ground and handcuffing him. The record shows that the

officers ordered Evans to the ground and handcuffed him because he allegedly brandished a

firearm just moments before they arrived. The officers placed Evans in a patrol vehicle and

transported him to jail only after confirming with Rojo that Evans had waved a firearm at her

daughter. The record does not indicate that officers ever told Evans he was under arrest when

they first handcuffed him to secure the area, and merely handcuffing a suspect in a high - isk r situation, by itself, does not constitute an arrest. See Radka, 120 Wn. App. at 49. Accordingly,

based on the record before us, we cannot say that the trial court would have found an absence of

probable cause to arrest Evans. Accordingly, Evans fails to demonstrate that the trial court likely

would have granted the motion to suppress the arrest had he challenged it at trial; therefore, he

does not demonstrate prejudice and fails to preserve this issue for appeal. See RAP 2. 5( a)( 3).

II. INEFFECTIVE ASSISTANCE

Evans next argues that defense counsel provided ineffective assistance by failing to

challenge the legality of his arrest and encouraging him to sign the stipulation. Defense counsel

was not ineffective because, as discussed above, challenging the defendant' s arrest would have

been futile and agreeing to a stipulation was a strategic, tactical decision designed to achieve a

favorable outcome.

8 Evans conflates probable cause and reasonable suspicion — he argues that officers unlawfully arrested him, yet he mistakenly relies on reasonable suspicion cases. For example, he relies on State v. Sieler, 95 Wn.2d 43, to argue that the officers improperly 621 P. 2d 1272 ( 1980), detained and questioned him based on an unreliable tip; he argues that the officers needed knowledge of the source' s reliability and needed to independently corroborate the tip before detaining him. But Sieler is inapplicable here because it involved an officer detaining or questioning someone, not having probable cause to arrest a suspect. 95 Wn.2d at 45. 7 No. 43736 -8 -II

To demonstrate ineffective assistance, the appellant must satisfy the two - pronged

Strickland test. Strickland v. Washington, 466 U. S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674

1984); State v. Cienfuegos, 144 Wn.2d 222, 226 -27, 25 P. 3d 1011 ( 2001). For the first prong,

the appellant must show that counsel' s performance was deficient, meaning that counsel' s

performance falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688.

For the second prong, the appellant must show that counsel' s deficient performance prejudiced

his or her defense. Strickland, 466 U. S. at 688. If trial counsel' s conduct can be characterized as

legitimate trial strategy or tactics, it cannot substantiate an ineffective assistance claim. State v.

McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002), cent. denied, 547 U. S. 1151 ( 2006).

First, Evans claims that defense counsel failed to provide effective assistance because he

did not challenge the legality of Evans' s arrest. But as reasoned above, the officers had probable

cause to arrest Evans. Because police had probable cause, any attempt by counsel to challenge

the legality of Evans' s arrest would have been futile. Therefore, counsel' s decision not to

challenge Evans' s arrest was reasonable and does not constitute ineffective assistance.

Second, Evans claims that defense counsel failed to provide effective assistance by

encouraging him to stipulate not only that the evidence against him was admissible, but that it

sufficiently supported his guilt. He claims this " hybrid" guilty plea and fact stipulation is not a

legally recognized method of resolving criminal prosecutions and deprived him of due process.

But Evans' s decision to stipulate to the admissibility and sufficiency of the evidence was a

strategic choice to obtain more favorable treatment —Evans knowingly and voluntarily stipulated

to the admissibility and sufficiency of the evidence against him in order to appeal the

suppression issue. And in exchange for Evans' s stipulation, the State dismissed the unlawful

carrying of a fireman charge. Because Evans' s stipulation strategically allowed him to appeal

N. No. 43736 -8 -II

the suppression issue and avoid an unlawful carrying of a firearm conviction, it cannot serve as a

basis for an ineffective assistance claim. See McNeal, 145 Wn.2d at 362. Accordingly, Evans' s

ineffective assistance of counsel claim fails.

We affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.

i

ON, J.